Circular 2010/07
TITLE
Slavery, servitude and forced or compulsory labour:
Implementation of section 71 of the Coroners and
Justice Act 2009
From:
Criminal Law Policy Unit
Issue date:
19 March 2010
Implementation date: 6 April 2010
For more information England and Wales
contact:
Louise Douglas
[email protected]
020 3334 5013
Northern Ireland
Emma Dalton
[email protected]
02890 527314
Broad Subject
Criminal Law
Sub Category
Slavery, servitude and forced or compulsory labour
This circular is
addressed to
Lord Chief Justice, President of the Queen’s Bench
Division, Senior Presiding Judge, Justices of the Supreme
Court, Lords Justices of Appeal, High Court Judges, Crown
Court Judges, District Judges (Magistrates’ Courts), Bench
Chairmen, Clerks to the Justices, Chief Officers of Police,
Chief Crown Prosecutors, Heads of Division Revenue and
Customs Prosecution Office
Copies are being
sent to
Judicial Studies Board, Council of Circuit Judges,
Magistrates’ Association, Justices’ Clerks’ Society,
Registrar of Criminal Appeals, HMCS Area Directors,
Crown Court Managers, HM Chief Inspector of
Constabulary, Association of Chief Police Officers, Police
Federation, Police Superintendents’ Association,
Chairpersons of Police Authorities, Association of Police
Authorities, The Law Society, the Bar Council, the Criminal
Bar Association, Whitehall Prosecutors’ Group, Legal
Services Commission, Law Centres, Citizens Advice
Bureaux, Liberty, Anti-Slavery International, UK Human
Trafficking Centre, Gangmasters Licensing Authority,
Health and Safety Executive.
SLAVERY, SERVITUDE AND FORCED OR COMPULSORY LABOUR
Introduction
1.
Section 71 of the Coroners and Justice Act 2009 (“the 2009 Act”)
introduces a new offence (“the section 71 offence”) of holding someone in
slavery or servitude, or requiring them to perform forced or compulsory labour.
2.
The section 71 offence applies in England and Wales and in Northern
Ireland. The purpose of this circular is to give some guidance on the new
offence to those working in the criminal justice system in England and Wales.
This circular is for guidance only and should not be regarded as providing
legal advice. Legal advice should be sought if there is any doubt about the
application or interpretation of the legislation. The CPS will issue guidance to
prosecutors on commencement of the new offence by way of Policy Bulletin
and Legal Guidance.
3.
Section 71 of the 2009 Act comes into force on 6 April 2010.
Elements of the offence
4.
The section 71 offence consists of holding another person in slavery or
servitude or requiring another person to perform forced or compulsory labour.
The circumstances must be such that the defendant knows or ought to know
that the person is being so held or required to perform such labour. The
offence applies to legal persons (e.g. companies) as it applies to natural
persons. 1
5.
A person can only commit the section 71 offence if they “hold” another
person in slavery or servitude or “require” another person to perform forced or
compulsory labour. If labour is subcontracted to another company and the
1
In accordance with general rules of statutory interpretation “person” includes “a body of persons corporate or
unincorporated”. See section 5 of and Schedule 1 to the Interpretation Act 1978
.
employees of that other company who do the work are held in slavery or
servitude or are required to perform forced or compulsory labour, then the
subcontractor is the principal offender. However, if the contractor knows that
the subcontractor’s workers are being so held or required to perform such
labour, then depending on the circumstances, they may be liable for aiding or
abetting the subcontractor’s offence, or for encouraging or assisting the
commission of the offence under the provisions of the Serious Crime Act 2007
or for conspiring to commit the offence.
6.
The terms “holds another person in slavery or servitude” and “requires
another person to perform forced or compulsory labour” are defined in
accordance with Article 4 of the European Convention on Human Rights. The
offence of trafficking people for labour exploitation under section 4 of the
Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“the 2004
Act”) is framed in similar terms and includes behaviour contrary to Article 4 as
one form of prohibited exploitation. It should be noted, however, that the
section 71 offence does not contain the element of trafficking and is not an
immigration offence. It is wider and will apply irrespective of whether the
victim has been trafficked and irrespective of the immigration status of the
victim(s).
7.
The exceptions under Article 4(3) of the European Convention on
Human Rights, which acknowledge that forced or compulsory labour may be
necessary in certain circumstances in order to ensure public safety and the
rights of others, will automatically apply to the new offence. Those exceptions
are work done in the course of lawful detention, military service, emergencies
or life threatening situations and work or service which forms part of normal
civic obligations.
8.
In interpreting section 71, the courts will have regard to existing case
law on Article 4 of the European Convention on Human Rights and any
relevant case law on section 4 of the 2004 Act. In establishing what might
constitute slavery, characteristics of ownership of the person need to be
present. Servitude is much wider. Courts have been guided by Articles 1 and
7 of the 1956 UN Supplementary Convention on the Abolition of Slavery, and
have stated that servitude involves a particularly serious form of denial of
freedom and that “in addition to the obligation to provide services for others, [it
involves]… the obligation for the ‘serf’ to live on another person’s property and
the impossibility of changing his condition”. 2
9.
In establishing forced or compulsory labour, the section 71 offence will
require an element of coercion or deception between the defendant and the
victim, and the circumstances will need to be such that the defendant knew
that the arrangement was oppressive and not truly voluntary, or had been
wilfully blind to that fact.
Van Droogenbroeck v. Belgium, no. 7906/77, Commission decision of 5 July 1979, DR 17, p. 59 & Siliadin v
France no. 73316/01, [2005] EHRLR 660 (para 123).
2
10.
There are a number of factors which may, depending on the
circumstances, indicate that an individual is being held in servitude or
subjected to forced or compulsory labour. The essential elements are those
of coercion or deception, which may be demonstrated in a number of ways.
The kind of behaviour that would normally, of itself, be evidence of coercion
includes (but is not limited to):
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Violence or threats of violence by the employer or the employer’s
representative;
Threats against the worker’s family;
Threats to expose the worker to the authorities (e.g. because of the
worker’s immigration status or offences they may have committed in
the past);
The person’s documents, such as a passport or other identification,
being withheld by the employer;
Restriction of movement;
Debt bondage;
Withholding of wages.
11.
Other factors that may be indicators of forced labour include (but are
not limited to):

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The worker being given false information about the law and their
employment rights;
Excessive working hours being imposed by the employer;
Hazardous working conditions being imposed by the employer;
Not being provided with safety equipment and clothing, and/or being
charged for the provision of such equipment that is essential to perform
the work;
Unwarranted and perhaps unexplained deductions from wages;
The employer intentionally not paying the full tax or national insurance
contributions for the worker;
Poor accommodation provided by the employer (e.g. accommodation
that is overcrowded, not licensed as a “House of Multiple Occupation”
by Local Authorities, or does not have any necessary gas and
electricity safety certificates);
Intentionally poor or misleading information having been given about
the nature of the employment (e.g. about the location or nature of the
work);
The person being isolated from contact with others;
Money having been exchanged with other employers/traffickers etc for
the person’s services in an arrangement which has not been agreed
with the person concerned or which is not reflected in his remuneration.
Penalties
12.
In England and Wales and in Northern Ireland the maximum sentence
on conviction on indictment for the section 71 offence is 14 years’
imprisonment. The maximum sentence on summary conviction for the
offence in England and Wales is six months’ imprisonment. 3 The maximum
sentence on summary conviction for the offence in Northern Ireland is six
months’ imprisonment.
Background and Context
13.
It is essential that the UK has effective legislation to deal with
servitude and forced labour. The behaviour can cause serious harm to
individuals and to society. It creates an expectation that labour vacancies
can be filled at lower than the legitimate market rate, and it creates unfair
competition amongst competing businesses. The UK has a positive
obligation under Article 4 of the European Convention on Human Rights to
protect those within its jurisdiction from slavery, servitude and forced or
compulsory labour.
14.
Trading in slaves is already an offence under the Slave Trade Acts
1824-1873. However, section 71 makes clear that holding a person in
slavery is also an offence. There is a range of pre-existing legislation which
could cover behaviour relating to servitude and forced or compulsory labour.
This includes general offences such as false imprisonment, blackmail and
assault, employment legislation including offences relating to working hours,
minimum wages and health and safety at work, and operating as an
unlicensed Gangmaster. There are specific offences of trafficking people for
labour exploitation, and offences of trafficking for sexual exploitation are
provided for in sections 57-59 of the Sexual Offences Act 2003. The section
71 offence will be available in circumstances where trafficking may not have
taken place or cannot be proved.
15.
Because of the nature of the section 71 offence, it is possible that
other offences may also have been committed alongside it, including those
listed above. In circumstances where this is possible or likely, it will be for the
police and the CPS to determine the most appropriate charge(s). It should
be borne in mind that the elements of exploitation mentioned above may
point to a wider range of offending. They might be the most obvious outward
signs that there is wider criminal behaviour which requires investigation.
Sentencing guidelines
16.
The Sentencing Guidelines Council’s guideline, Overarching Principles
– Seriousness, provides that where the victim is particularly vulnerable, there
is deliberate targeting of vulnerable victims, or the offence is committed by a
group or gang, this will be an aggravating factor in sentencing. These
guidelines will apply to the section 71 offence as they do to other offences and
will continue to have effect when Sentencing Guidelines Council is replaced
by the Sentencing Council.
On the commencement of section 154(1) of the Criminal Justice Act 2003, the maximum sentence on
summary conviction in England and Wales will rise to 12 months. There are no current plans to
commence this provision.
3
Who may be vulnerable
17.
The section 71 offence will apply to all workers, although migrant
workers may be particularly vulnerable. They may be vulnerable to coercion
and deception for a number of reasons. They may not speak the language,
they may be uncertain of their legal status in the UK, they may be distrustful of
authority and they may be used to living and working conditions which are
unpleasant and hazardous. They may fear being sent back to their country of
origin. They may be unwilling for all these reasons to complain of their
treatment, and may be even more unwilling to make a formal complaint and
bear witness against their exploiters. They may have unwittingly become the
victims of criminal gangs, who are threatening their safety and the safety of
their families abroad.
18.
The increased mobility of populations may mean that labour
exploitation is continuing to increase. The section 71 offence should provide a
tool to help recognise and tackle such exploitation.
Useful links
The Coroners and Justice Act 2009
http://www.opsi.gov.uk/acts/acts2009/ukpga_20090025_en_1
Explanatory notes on the Coroners and Justice Act 2009
http://www.opsi.gov.uk/acts/acts2009/en/ukpgaen_20090025_en_1
Home Office Circular 69/2004 - Asylum and Immigration (Treatment of
Claimants, etc) Act 2004: Trafficking Offences
http://www.homeoffice.gov.uk/about-us/publications/home-officecirculars/circulars-2004/069-2004/
A copy of the commencement order for the provisions addressed in this
circular can be found at http://www.opsi.gov.uk/
ANNEX A
Section 71 of the Coroners and Justice Act 2009
Slavery, servitude and forced or compulsory labour
(1)
A person (D) commits an offence if—
(a)
D holds another person in slavery or servitude and the
circumstances are such that D knows or ought to know that the
person is so held, or
(b)
D requires another person to perform forced or compulsory
labour and the circumstances are such that D knows or ought to
know that the person is being required to perform such labour.
(2)
In subsection (1) the references to holding a person in slavery or
servitude or requiring a person to perform forced or compulsory labour
are to be construed in accordance with Article 4 of the Human Rights
Convention (which prohibits a person from being held in slavery or
servitude or being required to perform forced or compulsory labour).
(3)
A person guilty of an offence under this section is liable—
(4)
(a)
on summary conviction, to imprisonment for a term not
exceeding the relevant period or a fine not exceeding the
statutory maximum, or both;
(b)
on conviction on indictment, to imprisonment for a term not
exceeding 14 years or a fine, or both.
In this section—
“Human Rights Convention” means the Convention for the
Protection of Human Rights and Fundamental Freedoms agreed
by the Council of Europe at Rome on 4 November 1950;
“the relevant period” means—
(a)
(b)
in relation to England and Wales, 12 months;
in relation to Northern Ireland, 6 months.
Article 4 of the ECHR
Article 4 – Prohibition of slavery and forced labour
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term force or compulsory labour shall not
include:
(a)
any work done in the ordinary course of detention imposed
according
to Article 5 of this Convention or during conditional release from
such detention;
(b)
(c)
(d)
any service of a military character or, in case of conscientious
objectors in countries where they are recognised, service
exacted instead of compulsory military service;
any service exacted in case of an emergency or calamity
threatening the life or well-being of the community;
any work or service which forms part of normal civic obligations.